Opinion: Business reprieved by copyright delay

Use the breathing space to ensure compliance

With all the excitement over protest marches to Parliament, blacked out Facebook pages and Stephen Fry getting hot and bothered, the threat posed by the new copyright act to New Zealand businesses has often been overlooked.

While concerns over the personal freedoms of internet users and the right not to be presumed guilty on accusation are certainly valid, for TUANZ the major issue with Section 92A of the Copyright (New Technologies) Amendment Act has revolved around its impact on corporate network owners.

Of course, the government’s decision last week to delay the act until March 27 is welcome, as it as removed an immediate threat to businesses.

At a time when businesses of all sizes are struggling to cope, this delay will give some breathing space.

However, this is a mere reprieve and not a pardon.

The government has now allowed time for a voluntary code of practice to be nutted out. Since a framework for such a code already exists in the form of the Telecommunications Carriers’ Forum’s (TCF) draft ISP code of practice released last month, it is by no means unreasonable to expect the act to come into force after all.

TUANZ applauds the work the TCF has done in developing this code and remains committed to working in good faith with the TCF, rights holder representatives and others to find a solution that will be workable and fair to all.

TUANZ members, like all legitimate businesses, deplore deliberate infringement of copyright and respect the rights of the copyright owners, but in seeking to protect the rights of rights holders, this law tramples over the rights of businesses and internet users generally.

This act will expose businesses to very significant compliance costs, the serious risk of litigation that has nothing to do with their core business, and the legal obligation to disconnect employees from their networks and thus potentially terminate their employment.

Even with a feasible code of practice in place, this law will heap even more onerous and complex compliance demands on businesses, many which are already feeling the strain of the tighter economic climate.

TUANZ represents hundreds of large end user organisations who run major networks as the foundation of their businesses, used on a constant basis by their employees. Our focus now is to help members deal with this law and the delay in its implementation buys us valuable time to do so.

Our advice to network owners is to use the breathing space the delay has created to ensure they have policies, systems and processes in place to deal with the potential compliance and employee relations issues they could face.

The law effectively classifies all organisations that provide an internet connection to a third party as an ISP. By definition this would include all organisations that provide their employees with access to the internet, which would apply to most New Zealand businesses.

Of course no sane employer would condone the illegal downloading of copyrighted material using its network and systems. It is therefore essential that organisations have clear internet use policies in place for employees.

Many web-savvy employers would already have such polices, but Section 92A provides fresh impetus to ensure these polices are indeed enforced.

It follows then that employers also need to take control of their network. A host of networking monitoring systems are available in the market that would not only enable network administrators to control what kind of material is accessed online, but also keep records of online activity, which would be vital to deal with infringement notices arising from the new law.

Employers also need to ensure their employment contracts with staff reflect the internet use policies. Again, it is not unreasonable to discipline or in worst case scenarios, dismiss, an employee who misuses company resources for illegal activity. We would not condone a company vehicle being used in a bank heist, so why should the company network be any different?

Lastly, and this could be one of the hardest parts of dealing with the law, organisations must prepare themselves to potentially be swamped with infringement notices from rights holders.

This may be less of an issue if the proposals in the TCF’s draft code are implemented, as it makes provisions for buffering the flow of notices directly to end users, since the upstream ISP, which provides the organisation with its connection, will be able to reject notices that do not meet the requirements of the code.

However, this would apply only to rights holders that sign up to the code, which we expect most of the responsible rights holder organisations in New Zealand would do — they seem genuine and well-motivated people. But any company, band, producer, photographer or writer in the world who professes to own copyright will be entitled to lodge a claim.

Therefore, owners of large networks in particular could still be inundated with notices, and will need to implement systems and process to record and effectively handle such notices.

While the draft code of practice makes provision for three notices to be sent before a final disconnection notice is issued, businesses cannot afford to run the risk of even one of these getting lost in the system, which could result in their network connection cut upstream by an ISP merely following the law of the land.

Although the best outcome for network owners would be a repeal of the law after the March 27 deadline, TUANZ remains committed to ensuring our members are best equipped to deal with this legislation.

Van Wyk is communications and marketing manager with TUANZ

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